Forfeiture: Another One of the Faces of Tyranny

- by Roy Timpe

[links corrected by Leon Felkins 8/7/01. File indiana98.jpg missing]

What would you say about a set of laws that allowed prosecutors to take the property of innocent people, encouraged law enforcement to act like bounty hunters, and gave public officials control over millions of dollars without requiring a public accounting? That is exactly what we have with our current forfeiture statutes. Our current forfeiture laws, originally intended as a weapon in the war on drugs, have spawned much abuse on both the Federal and State levels. On February 27, 1991, Willie Jones, the black owner of a Nashville nursery business, became an innocent victim of the federal forfeiture statute. What was his error? He made a ticket agent suspicious by purchasing an airline ticket with cash. He was traveling to Houston to buy shrubs and flowers with cash, which the small growers prefer. He was free to go, but the $9,600 so essential to his family business was seized. Mr. Jones' plight was first detailed in the August 11, 1991, issue of the Pittsburgh Press. There is nothing in the original newspaper account or the Department of Justice response to the Pittsburgh Press articles that indicates Mr. Jones will ever be arrested, let alone charged with a crime. The Drug Enforcement Administration routinely pays out 10% of the money seized as a reward for such tips.

The Federal Law:

In order to seize your property, the federal government only requires probable cause that there is a nexus, or connection, between your property and a drug crime. Once the agents have probable cause they can seize your property. You have 10 days in which to post a bond equal in value to 10% of the property. If you fail to post the bond you lose your property, and you never get your day in court. Assuming you can afford to post the bond, the burden of proof is on you to prove that you didn't know about the connection between your property and the crime. The federal government uses the forfeited property to help fund the "drug war." This gives law enforcement a big conflict of interest. Nothing makes this situation clearer than the U.S. Attorney General's August 1990 memo to all federal prosecutors. The memo cautions that forfeiture income was below budget projections. The memo goes on to say, "Failure to achieve the $470 million projection would expose the department's forfeiture program to criticism.... Every effort must be made to increase forfeiture income during the remaining three months." The Pittsburgh Press, in their investigation of federal forfeitures, said that over 80% of the people who lose property are never even arrested let alone convicted of a crime.

The Pennsylvanaia Law:

Pennsylvania is one of the more than 45 states that have a forfeiture statute that mirrors the federal law. The Pennsylvania law also allows forfeiture of a person's property when there is a nexus between the property and drug crime. The D.A. need only prove the nexus with the lowest burden of proof, a preponderance of the evidence. The conflict of interest in the federal government is no stranger to Pennsylvania law enforcement. In the Attorney General's 1991 report on assets received by forfeiture, 26% of the $9.4 million taken was used for police salaries. In 1992, 27% of the $12.3 million was used for salaries. In 1997, 22% of the $8.5 million taken was still being used for salaries. With the balance of the money used to run other aspects of the office, there are many police who need forfeiture to make payroll.

The Pennsylvania statute is somewhat unique in that there is no public accounting of the assets. The law states:

It shall be the responsibility of every county in this Commonwealth to provide, through the controller, board of auditors or other appropriate auditor, an annual audit of all forfeited property and proceeds obtained under this section. The audit shall not be made public but shall be submitted to the Office of Attorney General. 42 Pa. C.S.A. 6802(i)

The Fiscal Abuse:

In Berks Co., 1998 was the first year the D.A.'s forfeiture fund was audited by the Controller since its inception in the late 80's. This lack of a public accounting, and in some cases lack of any accounting, is an invitation to abuse. In Lakawana Co. this abuse was made manifest in the sale of a forfeited vehicle. The local paper discovered that the purchaser's original check to the D.A. of $2,350 was voided and never cashed, but a second check to the assistant D.A.'s wife for $1,000 was cashed. This incident prompted Lakawana Co. Judge Walsh to send a letter to state legislators requesting a change in the law to allow public accounting. Judge Walsh has correctly identified the problem.While the current statute prevents public disclosure of the county fiscal audits, some of the Attorney General's reports to the legislature have been made public. These reports give little comfort to those wishing for sound fiscal accountability of Pennsylvania's forfeiture funds. Indiana County shows a large discrepancy between the 1995-96 and 1996-97 reports.

Indiana County 1995-96 Fiscal Year (Note ending Balance)

Indiana County 1996-97 Fiscal Year (Note Starting Balance)

If you look closely you'll see that $17,481.27 and a vehicle materialized in Indiana County. Both reports show ZERO for forfeited vehicles. In the 95-96 report no unsold property was used, but in 96-97 a vehicle was used in undercover work. Where did it come from?

The current Pennsylvania forfeiture statute gives prosecutors a virtual slush fund free from public scrutiny, while it does nothing to protect innocent property owners.

The Innocent Owners:

Pennsylvania is not without its innocent owners. On May 6, 1989, in what has become perhaps the most infamous Pennsylvania forfeiture abuse, the Allentown Police seized the Lonardo family business, Shorty's Cafe. The events that followed saw the local prosecutor offering to testify on behalf of drug dealers in order to take the property of an innocent man. Mr. Lonardo was aware of the drug traffic in his cafe, and had taken many steps to stop it, including calling the police to initiate raids on his own cafe. Several drug-dealing patrons were arrested in these raids. The local prosecutor informed the drug dealers that if they could testify that Mr. Lonardo sometimes ignored drug traffic, the prosecutor would then testify on their behalf at their trials. What a deal! These drug dealers could get revenge on the Lonardos and possibly get reduced prison time just for testifying that Mr. Lonardo hadn't taken action every time they dealt drugs in the cafe. On April 15, 1992, the forfeiture of Shorty's Cafe was reversed by the Court of Common Pleas; however, the Lonardos did not get their business back. The prosecutor had appealed to the State Supreme Court. Finally, in February of 1994, the Pennsylvania Supreme Court reversed the forfeiture of Shorty's Cafe. The Lonardo family fought to reverse the forfeiture of their growing small business only to regain possession of a vandalized city property vacant for the past five years. The Lonardo family, although victorious, has exhausted their savings, and incurred a $50,000 debt, fighting the limitless resources of the state. The Lonardos filed a federal suit against the Allentown Police & the Lehigh County D.A. In 1997, one of Lonardo's patrons, who was arrested at an earlier raid, agreed to work as an informant to "get Shorty" and mitigate some of her own legal problems. Early in 1998, Mr. Lonardo was arrested on charges of trading drugs for stolen property. Mr. Lonardo later pled guilty to the charges. Mr. Lonardo may be genuinely guilty as charged, perhaps his plea was an economic decision, or perhaps he is just not very bright. As Paul Carpenter of the Allentown Morning Call said, "With bright prospects of winning that lawsuit against the cops et al, it may be argued that it was not very bright of Lonardo to continue running his bar within their jurisdiction."

The Lonardos are not the only ones to have a taste of the legal meat grinder. Thomas G. Karli of Lebanon had his business, the T&T Tavern, forfeited in 1991 due to the actions of his patrons. There have been no criminal proceedings against Karli, however the Commonwealth Court found that he had, "failed to prove both lack of knowledge and consent." Forgetting that it is impossible to prove a negative, the Penna. Supreme Court noted that Karli only has to prove lack of knowledge OR lack of consent and remanded the matter back to the Court of Common Pleas. Mr. Karli now faces his fourth court action to regain his property.

We're all Deputies

When viewed together the Lonardo's first case & Mr. Karli's situation should give property owners pause. Mr. Lonardo received his property back after 5 years because he had aided police in their efforts. The court said of Mr. Karli, "Although the record indicated that Appellant had taken some action to discourage the criminal activity taking place on his property, the Commonwealth Court held that Appellant had to prove that he did all that could reasonably be expected to prevent the criminal activity once he became aware of it." (649 A.2d 658) We are all now deputized by the forfeiture statute. It is no longer enough to take "some action" against crime. To keep your property you must initiate raids, and inform on criminals. The government chartered with protecting you now requires that you put yourself in peril or lose your property.

The Pennsylvania Reform Effort:

Three reforms are needed to make forfeiture statutes reasonable:

1) Require conviction of a crime before people can lose title to their property.

2) Require a public accounting of the funds acquired through forfeiture.

3) Require a proportionality analysis to assure that the punishment fits the crime.

Republicans have headed the reform effort. In 1993 Congressman Henry Hyde introduced forfeiture reform legislation that was consistent with protecting property rights. In June of 1994, Penna. State Rep. Dennis Leh introduced a resolution memorializing the U.S. Congress to act on forfeiture reform. Both actions were destined to be fruitless, since Republicans did not have a majority and lacked the ability to move past committees. All that changed in November of 1994. The Republicans got their majorities in congress and in the state legislature. However, the switch of the Republican Party from a party wanting power to a party actually having power transformed it. The Republican Party of ideas and property rights became the party of the status quo. Holding on to power has become more important than the ideals that got them elected. Henry Hyde chaired the committee that gutted his own forfeiture reform bill at the behest of the Justice Department. The resulting bill is worse than the current law. Henry Hyde, under pressure from diverse groups (such as the ACLU and the NRA) later reversed himself, and returned to supporting his original bill. Dennis Leh's resolution was tabled indefinitely at the request of the Pennsylvania Attorney General.

Our legislators lack the political will to protect our God given right of property. They need to hear from the electorate. These forfeiture laws are a direct challenge to our right of property. If this challenge goes unanswered, our other rights will be threatened as well.

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