Pennsylvania Prosecutors Shouldn't Be Taking Credit for Forfeiture Fund Appropriations -- The Pennsylvania Legislature Should

Yesterday, the Pennsylvania District Attorneys Association testified to the Pennsylvania Senate Judiciary Committee in opposition to civil forfeiture reform legislation (SB 869) sponsored by Senators Mike Folmer (R-48) and Anthony Williams (D-8). PDAA President Risa Ferman slammed SB 869, noting:

“This bill should be referred to as, ‘The Pennsylvania Drug Dealer Bill of Rights,’” said Ferman.  “When more people are dying from drug overdoses than ever before, now is not the time to give a break to drug dealers.  This bill will allow drug dealers to traffic more drugs, make more money and thrive.”

While PDAA recognizes and supports reasonable reforms to improve the civil forfeiture system, Ferman said the provisions written into S.B. 869 go too far.  She testified that the bill as currently written fails to recognize how drug dealers operate or how drug investigations take place.  Should the bill become law, Ferman said it would not only allow drug dealers to keep the tools of their trade, but will also help some defendants intimidate witnesses, avoid convictions and could severely limit law enforcement efforts to stop them.

“Requiring a criminal conviction as a mandatory condition for forfeiture would be an enormous win for drug dealers and would make it simple for drug dealers to protect their property, proceeds, and instrumentalities of crime,” Ferman noted as she outlined how the proposed procedures would play out in the justice system.  “This bill throws out a system communities fighting back against crime and violence count on.”

Along with their harsh criticisms of SB 869's reforms, the PDAA then proceeded to take credit for the ways law enforcement has used forfeiture proceeds:

Forfeiture not only makes communities safer by taking the money and tools of the drug trade out of the hands of criminals, but also by investing forfeiture proceeds into crime fighting and community building tools.  Drug task forces, the heroin antidote naloxone and investments in technology are just a few examples of how forfeiture turns drug money into a net win for taxpayers and the community.

There are a few problems with this stance. 

First, a literal reading of the PDAA's position is that the punishment of property forfeiture should not require a criminal conviction. This "guilty by default" position is contrary to the fundamental principles of liberty enshrined in both the Pennsylvania and US Constitutions and is in a nutshell, outrageous.

Second, the control of forfeiture proceeds by law enforcement undermines the ability of citizens to check abuses of power or unlawful conduct by government officials. In the immortal words of Federalist 58: "This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure."

It's also worth noting that Risa Ferman, who also serves as the district attorney for Montgomery County, presides over an asset forfeiture program that egregiously violates the rights of Montgomery County citizens:

"...the ACLU- PA found no records showing that property owners were even charged with a crime in connection with 15% of forfeitures. An additional 8% of property owners were never convicted of a related crime. Even where the DA’s office secured a conviction, many of these were for drug possession (16%) or purchase (10%), rather than drug dealing...

...In comparison, while African-Americans make up only 9% of Montgomery County’s population and 37% of those arrested for forfeitable offenses, our random sample of cases showed that they constituted an estimated 53% of the property owners faced with forfeiture cases between 2012 and 2014..."

We hope that the Pennsylvania Legislature takes action to restore the property rights of citizens by enacting the reforms in SB 869.


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