The Philly DA's civil-forfeiture machine starts to sputter

A court ruling could radically shake the Philadelphia District Attorney's multimillion dollar civil-forfeiture operation and, potentially, others like it around the country.

The DA’s Office dropped forfeiture action against the homes of Christos and Markela Souvelis of Somerton (at left), and Doila Welch, the lead plaintfiffs in a federal class-action suit challenging the civil-forfeiture law.
Courtesy Institute for Justice

About two and a half years ago, an elderly woman named Elizabeth Young sat in Courtroom 504 in the city's Criminal Justice Center before a judge who would shortly decide whether her West Philadelphia row home would be taken from her and sold at auction. Young and her husband had purchased the home four decades prior, and she continued to live there with her son and two grandchildren. The Philadelphia District Attorney's Office had begun the seizure process because of charges against her son alleging the possession and sale of small amounts of marijuana.

Young had not herself been accused of any crime. Even so, the DA was using the state's "civil forfeiture" laws, which allow law enforcement to take property linked by a "nexus" — a term as vague as it sounds — to a drug crime. In this case, Young's son, Donald, had been accused of possessing roughly $20 worth of marijuana on one occasion and selling a total of $160 worth at other times.

The question before Judge Paula Patrick was whether Young should lose her house for a total of $180 worth of weed.

Despite Young's testimony that she'd been in and out of the hospital all that year and was bedridden for much of it; that her son had helped care for her; that she had not known nor believed her son was dealing drugs; and that her son had lived responsibly and without incident in the house in the year following his arrests, the judge found that Young was "not an innocent owner at all," and should have done "something" — Patrick didn't specify what the elderly woman should have done — "regarding the property and the activities of her son."

Having lost that battle, Young's attorneys — a team from the law firm Ballard Spahr that was representing her pro bono — tried a different approach. The seizure of her house, her lawyer argued, represented an "excessive" fine — which the Eighth Amendment of the Constitution prohibits.

Young lost that battle, too: The court ordered her house seized and sold at auction. The house was forfeited and deeded over to the District Attorney's Office, still the owner of record.

But that decision, as was widely reported last week, was overturned by a state appellate court in an order that represents the latest, and perhaps the biggest, in a series of surprising developments that could radically shake the Philadelphia District Attorney's multimillion dollar civil-forfeiture operation and, potentially, others like it around the country.

The Pennsylvania Commonwealth Court decision found that Patrick had erred in agreeing with the DA that the fine being imposed upon Young — the loss of her house (as well as her car) — were appropriate for her son's marijuana offenses. (Her son eventually pled guilty to a single count of possession with intent to deliver, for which he was sentenced to 23 months of house arrest — in Young's house.)

It's a turn of events that couldn't have seemed more surprising three years ago, when City Paper detailed, for the first time, how the DA raises millions annually for its own use by seizing cash, cars and even houses from individuals who've rarely been convicted, and often not even accused themselves, of a crime. The reporting showed that civil-forfeiture cases are filed at an incredible rate and volume — possibly the greatest of any big city, though data is hard to come by — and pushed through a civil forfeiture "machine" in which the burden of proof is effectively placed on the property owner, not the DA, and in which the proving of criminal guilt is often irrelevant to the forfeiture process.

In the years following that story and others, the DA's forfeiture practices remained unchanged. The DA continued to seize dozens of houses, dozens of cars and millions of dollars in cash each year — often regardless of whether any criminal convictions had been secured. And DA Seth Williams said little by way of defending those seizures. Almost no one, after all, was demanding a response: Local papers didn't pick up the story; City Council, which appropriates the Office's budget, didn't ask Williams about forfeiture in his annual request for funding; and even a high-profile 2013 article in The New Yorker magazine, detailing the Philadelphia DA's forfeitures of houses, didn't seem to draw much of a reaction within the city.

All that has changed, and to an astonishing degree.

In August, the Institute for Justice and local law firm Kairys, Rudovsky, Messing & Feinberg filed a federal class-action lawsuit against the DA. Citing many of the findings in CP's reporting, it charged that the DA's civil-forfeiture apparatus routinely violates the constitutional rights of due process of those whose property is seized. That lawsuit, in turn, made its way onto a story on CNN, and then, in October, the HBO show Last Week Tonight With John Oliver.

Then, on Nov. 13, CP reported that some houses the D.A. had seized via forfeiture came through cases conducted by the same narcotics cops now facing federal racketeering charges. The DA had long ago disavowed the cops' testimony while quietly agree­ing to drop or allow to be overturned hundreds of criminal cases those officers brought. At the same time, the DA's Office doesn't appear to be interested in returning anyone's houses seized on those officers' word.

In December, DA Williams announced that his office was dropping two forfeiture cases named in the class-action suit and brought by Christos and Markela Sourovelis and Doila Welch (none of them accused of crimes themselves). It seemed to have been an attempt to redirect the negative spotlight away from the DA's forfeiture practices.

In a statement to CP, District Attorney's Office spokeswoman Tasha Jamerson argued, "The truth is that we resolve most of our real-estate forfeiture actions by agreement, just as we are doing here, and we have been doing that since long before this lawsuit was filed."

The statement is true — though the "agreements" are in fact legal settlements which can take a year or longer to resolve, and in which property owners often give up rights, including the right to contest a future forfeiture. But it's no less true that despite these agreements, the DA still proceeds with the forfeitures of dozens of houses every year.

But if Williams is trying take the steam out of what appears to be mounting pressure over his office's forfeiture program, the efforts might be too little too late.

His announcement to drop the two cases only barely preceded the appellate court decision, which stated in no uncertain terms that they violated individuals' constitutional rights to protection from excessive fines — a ruling which, in turn, prompted even more ink, when the Inquirer published an editorial calling on Williams not to appeal the case to the state's Supreme Court, a decision which remains pending.

It surfaced again in a Philadel­phia magazine interview of former-D.A.-turned mayoral candidate Lynne Abraham this week. (Abraham defended her own use of forfeiture laws but said she welcomed reform.)

And several weeks ago, state Sen. Anthony Will­iams, who is also running for mayor, quietly let colleagues know that he intended to introduce, along with co-sponsor state Sen. Mike Folmer, a bill in the state legislature that would require criminal convictions for forfeiture. (Anthony Williams acknowledged in a statement to CP this week, however, that after hearing concerns by DA Williams (no relation), he is now "reworking" the bill; the statement didn't elaborate on what the concerns were.)

If Pennsylvania's legislature actually takes up, debates and even passes a bill restricting the use of civil forfeiture — let alone to the extent initially suggested in Anthony Williams' bill — it would be major news. For all the attention civil forfeiture has been getting here and elsewhere, very few states have moved to change their laws recently, and much of the momentum for reform has come instead from court rulings.

But even without legislative action, the Commonwealth Court ruling could have a profound effect on the way the DA operates.

The order "sends a cautiona­ry note to the lower courts that they have to take these properties ser­iously," says Louis Rulli, a Uni­versity of Pennsylvania law professor who heads its civil law clinic, which provides free representation to homeowners facing forfeiture.

"It recognizes that civil forfeiture is just prone to too much abuse and that the courts must play a role in supervising" the cases, says Rulli.

How that decision will play out in real life, in courtrooms 478 and 504, where the civil for­feiture cases are processed, remains to be seen. But so far, that "machine" has op­erated so smoothly largely because of a volume and pace employed not just by the DA's office itself but by the judges granting the forfeitures at such rates. That may be about to change.