OPED: U.S. forfeiture plan contrary to state laws and rights

Sen. Mike Folmer
48th Senate District

Asset forfeitures are civil proceedings that allow law enforcement to take possession of the property of certain persons suspected of crime. Drug arrests are the most common examples of seizures: cash, cars, and sometimes homes. Law enforcement can seize personal property from citizens based only on the suspicion the property has been involved in criminal activity — without ever having to charge the owner with a crime.

Over time, forfeitures expanded. Once used to take profits from convicted criminals and deter them from their illegal actions, forfeiture was sometimes used to take ownership of properties from innocent citizens. Cash, cars, real estate, and even personal property was taken from people who faced no criminal charges. In Philadelphia alone, one-third of those who had had their property forfeited were not convicted of a crime.

I was pleased to work with Senate President Pro Tempore Scarnati to spearhead changes in Pennsylvania law to better protect property rights — now Act 13 of 2017. Since then, US Attorney General Jeff Sessions has announced federal changes to expand the scope of forfeitures. I have concerns with these policy changes as I believe they’re contrary to state laws and states’ rights.

Opponents of our efforts in Pennsylvania are now bemoaning Sessions’ proposals for property forfeitures while previously saying Pennsylvania’s reforms wouldn’t go far enough. Compare one op-ed about Pennsylvania’s changes, entitled, “To Think that SB 8 Becoming Law will Effectively Reform Civil Asset Forfeiture is Naïve,” with another opinion piece lamenting federal seizures that said: “Jeff Sessions Is Aiding and Abetting Police Departments Who Want to Seize Property of People Convicted of No Crime.”

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Fortunately, Senator Scarnati and I were able to overcome those who said our proposed reforms weren’t good enough. Our opponents were, in essence, protecting the status quo. We’re especially thankful for the help and support from the US Justice Action Network, a national organization working to curb civil asset forfeiture abuses, and the Pennsylvania District Attorneys’ Association.

For over two years, we worked to bring needed reforms to Pennsylvania law. The key was finding a proper balance between the uses of forfeiture against criminals with the property rights of innocent citizens who should not have their property taken by the government.

We also worked to include language in our legislation to maintain protections that prohibit state agencies from referring Pennsylvania property to the federal government and allowing forfeitures under the revised federal policies.

In addition to Pennsylvania’s new law protecting against federal overreach, it also:

  • Creates a higher burden of proof for forfeiture and protects third-party owners by placing additional requirements on government agencies;
  • Increases transparency in the auditing and reporting of forfeited property;
  • Prohibits any pre-forfeiture seizures without due process (i.e., a hearing), and;
  • Establishes an extra level of protection for anyone acquitted of a related crime who is trying to get their property back.

Without these protections, Pennsylvanians would have continued to face a complex civil court system — without the aid of an attorney — and would have continued to be forced to try to prove their property innocent against governmental power.

Now, if we could just get the federal government to adhere to the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

I simply do not believe the federal government knows best — especially when it comes to property rights.

— State Sen. Mike Folmer represents the 48th Senate District in the Pennsylvania State Legislature. Reach him at www.senatorfolmer.com.