White Collar Criminal Defense Group

Not So Fast: The Pennsylvania Supreme Court’s Check On Civil Asset Forfeiture

A dialogue has been ongoing in this country regarding the ability of the government to seize property that is alleged to be connected with criminal conduct.  We have all seen forfeiture notices attached to federal indictments, and we have seen District Attorneys and State Attorneys General file civil actions against “bad” property, including cars, homes, cash, and more.  On May 18, 2017, USA Today ran an article entitled “How Police Steal From Citizens,” wherein op-ed contributor Payton Alexander notes that at least 15 states are considering legislation to cut down on civil asset forfeiture, or eliminate it completely.  Here, in Pennsylvania, we might not have to wait for the legislature.

On May 25, 2017, in a lengthy and detailed opinion by Justice Debra Todd, the Pennsylvania Supreme Court struck down the seizure of a 71-year-old disabled grandmother’s home and vehicle by the Philadelphia District Attorney’s Office.  Elizabeth Young was home on bedrest when her son, 50-year-old Donald Graham was arrested for selling marijuana out of the home and car owned by his mom.  Ms. Young unsuccessfully asserted an innocent owner defense at the trial court level in an attempt to save the rowhome in which she lived for the past 40 years. 

The Pennsylvania Supreme Court held that the analysis of a forfeiture action begins with a determination of whether the property is an instrumentality of a crime.  If it is found to be an instrumentality, a proportionality analysis must be undertaken.  The Court explained in great detail a non-exhaustive list of factors to be considered in weighing the value of the property to be seized against the gravity of the crime.  In this particular case, the District Attorney’s Office argued, in part, that Mr. Graham sold drugs out of his mother’s home for years, thus placing neighbors and investigating officers in harm’s way.  The Supreme Court found this analysis to be insufficient and flawed.

Perhaps the issue of greater importance addressed by the Court was that of Ms. Young’s innocent owner defense.  Justice Todd explained that the trial court must identify the circumstances that make it reasonable to infer that the owner of the property had actual knowledge of the criminal conduct in order for the Commonwealth to defeat the innocent owner defense.  The Court noted the difficulty a property owner might have in “proving a negative,” i.e. that she did not have knowledge of the crimes.  The Court added that a home is an “especially significant type of property.”  “The loss of one’s home, regardless of its monetary value, not only impacts the owner, but may impact other family members, and one’s livelihood. Indeed, the home is where one expects the greatest freedom from governmental intrusion; it not only occupies a special place in our law, but the most exacting process is demanded before the government may seize it.”  The Supreme Court held that the trial court did not sufficiently consider all of the relevant circumstances in evaluating Ms. Young’s evidence proffered in support of her defense.  The case has been remanded.

Pennsylvania is known to be a political swing state and can be viewed as a bellwether on certain important issues.  Only time will tell whether this most recent decision of the Pennsylvania Supreme Court will lead the pack in nationwide reform of civil asset forfeiture.

Commonwealth v. 1997 Chevrolet, et al., can be found on the Court’s website here or at 2017 WL 2291733.

Attorney General Announces New DOJ Charging And Sentencing Policy

On May 10, 2017 Attorney General Jeff Sessions issued a memorandum to all federal prosecutors setting out the new administration’s policy on charging and sentencing.  The directive may result in more frequent use of mandatory minimums and longer sentences for offenders.

Under the new policy, federal prosecutors are directed to charge and pursue the “most serious” and readily provable offense, defined as “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”  The memorandum recognizes that there may be some limited circumstance in which prosecutors find that strict application of the charging policy is not warranted.  In remarks to New York City law enforcement on Friday, May 12, the Attorney General noted that his policy gives prosecutors discretion to avoid sentences that would result in an injustice.  Assistant United States Attorneys must, however, obtain approval to charge less than the most serious offense.

The policy represents a stark reversal of the charging guidelines crafted by the Obama administration, which directed prosecutors not to charge defendants with crimes that carried mandatory minimum sentences under Title 21 based on drug type and quantity where the defendant met certain criteria, including that the defendant’s conduct did not involve violence, trafficking to minors, or serious injury or death.  The reversal of the former administration’s charging guidelines affects prosecutors’ ability to consider the individualized circumstances and characteristics of defendants implicated in drug offenses at the charging stage.

The new memorandum addresses sentencing policy as well.  It requires prosecutors to disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences and to seek a reasonable sentence under the § 3553 factors in all cases. According to the policy, sentences imposed within the guideline range will be considered appropriate in most cases.