In a unanimous 73-page opinion, the Pennsylvania Supreme Court has provided significantly increased protections for property-owners in civil forfeiture cases where the matter arises out of some sort of criminal wrongdoing for which there may not have been a prosecution. The Court’s opinion will particularly benefit property owners who face a civil forfeiture action due to wrongdoing committed by someone who uses or has access to the property but does not actually own it. In Commonwealth v. The Real Property and Improvements Known as 416 S. 62nd Street, Philadelphia, PA 19143 (Elizabeth Young), the Court found that the Excessive Fines Clause of the Eighth Amendment to the United States Constitution provides significant constitutional limitations on the government’s ability to seize property from someone who has not been convicted of a crime.
What is Forfeiture?
There have traditionally been two types of forfeiture which could relate to criminal wrongdoing. In general, criminal forfeiture is less problematic and controversial. Criminal forfeiture is the idea that someone who has been convicted of a crime may be ordered by the sentencing court to forfeit property related to the crime or profits generated through criminal activity. The criminal forfeiture is part of the defendant’s sentence, and it requires that the defendant have been convicted beyond a reasonable doubt. For example, if you are convicted of money laundering, you could be ordered by the sentencing court to forfeit the money.
The other type of property forfeiture, civil forfeiture, is much more problematic and controversial because it does not a criminal conviction or even a prosecution. Civil forfeiture involves the government filing a lawsuit against the property itself instead of a criminal defendant. Historically, if the government could show some sort of nexus between the property and some sort of criminal activity, then the government could seize the property even if the defendant had not committed the crime or even been involved in it. Thus, civil forfeiture at its worst allows the government to take your house if someone else in your house commits a crime while in the house even though you, as the property owner, had nothing to do with the crime. Civil forfeiture is also problematic because it disrupts law-enforcement incentives by providing cash-strapped cities and states with a financial incentive to focus on drug crime, where the police are likely to be able to seize cash, weapons, cars, and jewelry, instead of more serious crimes like rape and murders where law enforcement are not going to make any money through civil forfeiture. In an era of tight governmental budgets, civil forfeiture can be a real way for police and prosecutors to stave off cuts to their own departments. Thus, police and prosecutors could become more interested in arresting people for selling marijuana than solving violent crimes.
Commonwealth v. Elizabeth Young
Commonwealth v. Elizabeth Young provides one of the clearest examples of civil forfeiture abuse and the need for increased protections. In Young, the Philadelphia District Attorney’s office attempted to use civil forfeiture to take the house of a 71-year-old grandmother who owned and resided in a property in West Philadelphia. She had owned the house since the 1970s, and in 2006, her health began to deteriorate. Her adult son and two grandchildren moved into the house, and her adult son began selling relatively small amounts of marijuana. On a number of occasions, her son sold marijuana to police officers or confidential informants. He also used her Chevrolet Minivan to meet with buyers during some of these drug transactions. On at least one occasion, police warned Ms. Young that her son was selling marijuana, but the marijuana sales apparently continued.
Eventually, Ms. Young’s son was convicted of Possession with the Intent to Deliver marijuana and sentenced to a short county jail sentence. Ms. Young was never charged with a crime, but the District Attorney’s Office filed a petition for forfeiture of her house and vehicle under the Controlled Substances Forfeiture Act. Although the Commonwealth never charged her with a crime, prosecutors sought to put a 71-year-old grandmother out on the street due to the fact that she was unable to prevent her adult son from selling small amounts of marijuana.
The trial court, finding that Ms. Young had not done enough to stop her son from selling marijuana, ordered the house and car forfeited to the Commonwealth. The trial court found a nexus between the marijuana sales and the home and vehicle in that both the house and the car were used to store and sell marijuana. Under Pennsylvania law, there is an “innocent owner” defense to civil forfeiture in that a defendant may retain the property if the defendant can show that he or she did not know about the illegal activity or did not consent to it. However, the court found that the innocent owner exception did not apply because police had warned Young of the sales and she had not done anything to stop her adult son from selling marijuana after that date. In other words, she was unable to convince her son to stop, and she was also not willing or able to throw him out of the house. The trial court further found that that the forfeiture did not constitute an excessive fine because the maximum financial penalty for the drug crimes would have been $80,000, and that amount exceeded the value of the home and automobile.
Increased Protections in Civil Forfeiture Cases
On appeal, the Commonwealth Court reversed the trial court’s ruling, and last week, the Pennsylvania Supreme Court upheld the decision of the Commonwealth Court. The Court traced the history of both civil and criminal forfeiture and the Excessive Fines Clause of the Eighth Amendment and ultimately concluded that the trial court erred in ordering that the property be forfeited. The Court found that a trial court must consider two issues in a challenge to a civil forfeiture under the Excessive Fines Clause.
First, the trial court must determine whether the property sought to be forfeited is an instrumentality of the underlying criminal offense. If the property is not an instrumentality, then the forfeiture is unconstitutional and the property may not be forfeited. If the trial court finds that the property is in fact an instrumentality, then the court must still determine whether the value of the property sought to be forfeited is grossly disproportional to the gravity of the underlying offense.
In making the decision on the threshold instrumentality issue, the court should consider at least the following factors:
(1) whether the property was uniquely important to the success of the illegal activity;
(2) whether the use of the property was deliberate and planned or was merely incidental and fortuitous to the illegal enterprise;
(3) whether the illegal use of the property was an isolated event or repeated;
(4) whether the purpose of acquiring, maintaining or using the property was to carry out the offense;
(5) whether the illegal use of the property was extensive spatially and/or temporally; and
(6) whether the property is divisible with respect to the subject of forfeiture, allowing forfeiture of only that discrete property which has a significant relationship to the underlying offense.
If the property is an instrumentality of the crime, the court must weigh the value of the property against the gravity of the offense. In evaluating value, the court must consider the following factors:
(1) the fair market value of the property;
(2) the subjective value of the property taking into account whether the property is a family residence or if the property is essential to the owner’s livelihood;
(3) the harm forfeiture would bring to the owner or innocent third parties; and
(4) whether the forfeiture would deprive the property owner of his or her livelihood.
Once the court has determined the value of the property, the court must then weigh the value of the property under the above four factors against the gravity of the offense, considering factors such as:
(1) the nature of the underlying offense;
(2) the relation of the violation of the offense to any other illegal activity and whether the offender fit into the class of persons for whom the offense was designed should be considered;
(3) the maximum authorized penalty as compared to the actual penalty imposed upon the criminal offender;
(4) the regularity of the criminal conduct — whether the illegal acts were isolated or frequent, constituting a pattern of misbehavior;
(5) the actual harm resulting from the crime charged, beyond a generalized harm to society; and
(6) the culpability of the property owner.
Clearly, the court must now consider a large number of factors when making a civil forfeiture decision, and the majority of the factors are going to weigh against taking a 71-year-old grandmother’s home due to a limited number of marijuana sales by a non-owner of the property. Thus, the Pennsylvania Supreme Court remanded the case to the trial court to reconsider its findings in light of the new guidance provided by the decision. Additionally, the Supreme Court rejected the trial court’s relatively cursory analysis of the issue under the innocent owner defense. The Court noted that the innocent owner defense can be shown through two ways: either a lack of knowledge or lack of consent. Thus, simply having knowledge of illegal activity may not be enough. If the defendant ordered her son to stop selling drugs and believed he had done so, then that may have been enough to show a lack of consent even if she did originally have knowledge.
Award-Winning Philadelphia Criminal Defense Lawyers for Forfeiture Cases
The Court’s ruling greatly strengthens the protections for people who are facing civil forfeiture actions but have not been found guilty of any criminal wrongdoing themselves. It also should not really limit the Commonwealth’s ability to take property which his truly being used for criminal activity. In the case of a house which has really become a drug house, or property which has been used to commit a crime, then prosecutors should still be able to show that the factors weigh in favor of forfeiture. But in cases like Young, the Commonwealth will have a much more difficult time putting grandmothers out on the street because they have difficulty stopping adult children from selling marijuana.
As always, if you are facing criminal charges, under investigation, or dealing with a forfeiture action, you should speak with one of our Philadelphia criminal defense lawyers today. We can help with state and federal charges in Pennsylvania and New Jersey. Call 267-225-2545 for a free criminal defense strategy session with an award-winning defense attorney.