Posted to FEAR-List 12-4-94 by Brenda Grantland
A Pennsylvania inmate-paralegal, Allan S. Ewing, recently sent FEAR a copy of a case he helped a claimant win -- Commonwealth of Pennsylvania v. $9,847, 637 A.2d 736 (Commonwealth Ct. of Pa., March 22, 1994), which held that a forfeiture claimant has the right to court appointed counsel to represent him in his forfeiture case, even though the forfeiture does not implicate a liberty interest.
As recently as mid-November, when I spoke at the Drug Policy Foundation conference and someone asked me if there is a right to court appointed counsel in forfeiture cases, I said no. I thought this would be a hard thing to achieve because of the Supreme Court's limitation of the right to counsel to cases involving liberty interests. In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Supreme Court held that a person has a right to a court appointed attorney at the government's expense only if the judgment could result in the loss of liberty. And in Scott v. Illinois, 440 U.S. 374 (1979), the Court held that convictions can be reversed on denial of counsel grounds only if the judgment results in a sentence of imprisonment. It seemed that we would have to overturn those two cases to get any progress on that ground.
But, luckily, I was wrong. The Commonwealth Court of Pennsylvania, in the $9,847 case, noted that the Supreme Court backed away somewhat from the draconian approach of Argersinger and Scott in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), which held that there is merely a presumption that the right to counsel only applies to cases involving liberty interests. The Supreme Court held in Lassiter that the presumption against the right to counsel must be balanced against the due process factors enunciated in Matthews v. Eldridge, 424 U.S. 319 (1976): (1) the private interested affected by the governmental action, (2) the risk of erroneous deprivation if the procedural safeguard is not provided and the probable value of the procedural safeguard, and (3) the governmental interest involved, including additional burdens on the government from the procedural safeguard.
Applying these factors, the Pennsylvania court concluded -- apparently for the first time in a reported decision -- that Due Process requires the appointment of counsel. The court noted, first, that the government is seeking to impose an additional penalty upon the property owner. Secondly, it found a high degree of likelihood of an erroneous deprivation if the court denied court appointed counsel, noting that the government normally expects to meet only pro se litigants struggling through the forfeiture process. "It is quite likely that in most, if not all forfeiture cases, the appointment of counsel would substantially aid a claimant in negotiating the arcane forfeiture procedures." $9,847, quoting United States v. 1604 Oceola, 803 F.Supp. 1194, 1196 (N.D. Tex. 1992). The court in Oceola concluded that the appointment of counsel was not required in that case, because the property owners had pleaded guilty to the offense which would trigger forfeiture, and the court felt the property owner would not have any defense under the current law.
The Pennsylvania court stated that the Oceola case -- the only other case they were able to find addressing the issue of the right to counsel in forfeiture cases -- might have been correctly decided at the time, but the court believed it would have been decided differently after Austin v. United States, 113 S.Ct. 2801 (1993) held that forfeiture is punishment.