fbinaa_Mar-Apr-2019_Digital_Final

I n the Trump administration, his previous Attorney General had breathed new life into equitable sharing for local law enforce- ment. The Sessions’ changes in federal adoptions were timely since many states have now altered the asset sharing process with local and state law enforcement, substantially diminishing the civil asset forfeiture process and distribution. And a new case just granted certiorari by the Supreme Court may have broader implications for all remaining states in the area of civil asset forfeiture. legal ownership of seized assets from an individual charged with a crime to state or the federal government. This legal process is placed against property (in rem) , meaning “against the property,” not the individual (in personam) , “against the person.” “In perso- nam” forfeitures require a criminal indictment, “in rem” forfeiture action require no criminal charges and the proceedings are admin- istered at a civil hearing. Most of the controversy involving abuse in asset forfeiture is directed at the “in rem” method. This type of seizure describes the “property” as the offender of the criminal ac- tion. In these cases, the government must show in civil court that the property was used as the instrument of the crime but, up until recent reforms, no criminal conviction was required. LEGAL CHALLENGES TO CIVIL ASSET FORFEITURE: In the past five years, the legal and academic communities have presented the public with a multitude of problems that they saw with current civil forfeiture practices. They assert that the public has been harmed and offered some convincing cases of abuse to support their position. The legal battles include the traditional application of a lower standard of proof, innocent ownership, and disproportional seizures when compared to the underlying criminal offense. STANDARD OF PROOF: Defendants in a criminal action may be acquitted of the all underlying charges but lose their property to the government under the lower, civil court, standard of proof. i.e. preponderance of evidence. This was viewed by critics as a “lose-win” situation for law enforcement since the police were still able to effectively seize assets even after failed criminal prosecutions. To address this, two dozen states have made it harder for authorities to take property from individuals without first securing criminal convictions. Other states, (Utah, Kentucky, Michigan, and Nevada) have modified their standard of proof to “clear and convincing”, a higher burden than the preponderance level. Three states: North Carolina, New Mexico, and Nebraska, have abolished civil forfeiture entirely. In all, since 2014, 29 states and the District of Columbia have raised the stan- dard of proof in their civil forfeiture laws. INNOCENT OWNERSHIP: One case that certainly impressed the national public was a 2014 forfeiture case in Philadelphia involving the Sourovelis Family. Christos Sourovelis’s son was arrested for selling $40. of illegal drugs outside his home. His home was subsequently seized as an instrument of the drug transaction, and his family was displaced pending the civil forfeiture action. After Sourov- elis successfully filed a class action federal lawsuit, enjoined by the Institute of Justice, the DA’s Office not only dropped the forfeiture action against Sourovelis but in 2015 amended future civil forfeiture procedures. This case presented the obvious issue of innocent ownership and proportionality. In Pennsylvania as well as half the states, it is the burden of the property owner to BACKGROUND: Civil Judicial Forfeiture is a statutory process that converts

show the property owner was unaware that the property had been used for criminal purposes. In the case of the Sourovelis family, their appeal of innocent ownership was successful. A re- cent Pennsylvania law signed by Governor Wolf specifically adds protection in real property cases by prohibiting the pre-forfeiture seizure of real property without a hearing. This provision would have likely stopped the eviction of Christos Sourovelis from his home before the criminal case against his son was litigated. However, the innocent owner defense was successfully denied in another case on appeal where a property owner had clear knowl- edge that her grandson was selling illegal drugs from her home and failed to take corrective action to stop the criminal activity. In this case, the police made several buy-busts from the grand- son who was a resident in the property. The property owner was not criminally charged but the grandson was, and pled guilty to the drug offenses. The appellate court noted that the owner was present during the repeated police actions, indicating her full knowledge that the property was an instrument of the drug of- fenses, not merely a location. Law enforcement should note that this forfeiture was successfully upheld on appeal in part because police were able to correctly document the owner’s presence and awareness of continued criminal activity. Many states have now amended their forfeiture laws regard- ing innocent ownership by placing the burden of proof on the law enforcement agency, not the property owner, in proving the owner was aware of the nexus between the property and the criminal activity. disposition of the assets after forfeiture. Public opinion in many communities opine that police agencies seek asset forfeiture to en- hance their own budget, “padding police coffers”. In truth county prosecutors in many states have control of the forfeited asset and have enhanced their own offices with this funding. Between 2002 and 2013 forfeiture revenues were equivalent to nearly one-fifth of the entire Philadelphia district attorney’s budget. As we know, equitable sharing through federal adoptions afforded local law enforcement guaranteed sharing with little restriction on the use of the funds, a factor used by the Obama administration in limiting the type of equipment local agencies can purchased with federal forfeiture. Within the past few years many states and municipalities have amended their forfeiture policies to specifically prohibit the seizing police agency from benefitting from the asset. In addition to procedural reforms, some county prosecutors no longer control the forfeited assets but are now under the control of judges. And community-based drug rehab programs, not the police, will be the recipients of the forfeited funds. Scott Bull- ock, president of the Institute for Justice called Philadelphia’s consent decree “an unprecedented blow against civil forfeiture”. Other governments have passed similar amendments to their civil forfeiture laws. States that restrict police agencies from receiving any amount forfeited asset include, NM, MO, WI, IN, ME, NC, and District of Columbia. “POLICING FOR PROFIT”: Much of the criticism of civil forfeiture is centered on the

F B I N A A . O R G | M A R / A P R 2 0 1 9

PROPORTIONALITY-EIGHTH AMENDMENT: The Eighth Amendment of the United States Constitution

continued on page 31 17