Commentary: Time for high court to rein in Pa. civil-forfeiture laws

By Milad Emam

For the past six years, Elizabeth Young has been living an American nightmare.

Philadelphia police officers showed up at her house and tried to seize her home and car because her son sold $90 worth of marijuana outside her home. Young was never charged with a crime, yet she was soon caught up in Philadelphia's civil-forfeiture machine.

With the deck stacked against her, Young went to Philadelphia's criminal justice center and fought to get her property back, arguing that she was an innocent owner because she did not know her son was dealing drugs, having been hospitalized during that time. She also argued that compared with the small amount of drugs sold by her son, the forfeiture of her home and minivan was an unconstitutionally excessive fine.

As Young's fight shows, civil forfeiture turns the idea of innocent until proven guilty on its head. Under Pennsylvania law, if a person's property is used by someone else to commit a crime, the innocent owner is compelled to go to court and prove his or her innocence - namely, lack of knowledge of or consent to illicit use of the property.

In Pennsylvania, adding insult to injury, law enforcement officials can use 100 percent of forfeiture proceeds to pad their budgets and salaries, giving them a direct financial incentive to seize as much as possible. It is little wonder that a recent report by the Institute for Justice, "Policing for Profit," gave Pennsylvania a grade of D-minus for its civil-forfeiture laws.

Like law enforcement agencies throughout Pennsylvania, Philadelphia's District Attorney's Office and Police Department profit from forfeiture. And until last fall, the same prosecutors filing forfeiture petitions presided over initial forfeiture proceedings. To put a stop to these practices and other unconstitutional abuses, the Institute for Justice is suing these agencies on behalf of property owners ensnared in Philadelphia's forfeiture machine.

Unlike most of these property owners, Young was represented by a lawyer who was able to take her case to trial before a judge. Unfortunately, the judge ruled against her.

On appeal, the Commonwealth Court reversed the judge. It held that in determining whether the forfeiture of Young's property was unconstitutionally excessive, the judge failed to consider whether Young was culpable or whether her property was instrumental in her son's crime.

According to the Commonwealth Court, the judge also erred in requiring that Young eject her son from her home in order to prove her innocence.

The appeal by Young, now 71, has reached the Pennsylvania Supreme Court, which will hear the case Wednesday. It is time for the court to rein in Pennsylvania law enforcement's use of civil forfeiture.

Through this case, the Supreme Court can clarify that forfeiture of an innocent owner's property that was only tangentially connected to a crime is an unconstitutionally excessive fine and that Pennsylvanians need not be de facto law enforcement officers to prove their innocence. For the sake of Pennsylvanians' property rights, it is vital that it do so.

As long as Pennsylvania law enforcement can keep 100 percent of forfeiture proceeds, forfeiture will continue to be out of control. However, by protecting property owners' rights, the state Supreme Court can take a much-needed step toward reining in law enforcement's use of forfeiture.

Milad Emam is an attorney at the Institute for Justice who coauthored a friend-of-the-court brief in support of Elizabeth Young. memam@ij.org