In a civil forfeiture case that went all the way to the state supreme court, Elizabeth Young of Philadelphia will have her home returned to her seven years after it was seized based on $190 worth of cannabis, which belonged to her son.
Justice Debra Todd of the Pennsylvania Supreme Court wrote that her ruling would help safeguard that “innocent property owners are not dispossessed of what may be essential possessions…without rigorous scrutiny by the courts.”
Young’s case is part of a larger problem. The practice of civil forfeiture allows law enforcement to take possession of a person’s assets, regardless of whether that person is charged with a crime. Even if no charges are filed, a person must prove they were not involved in a crime in order to have the assets returned. This method was intended to curb large-scale drug trafficking often perpetrated by organized crime, but it also acts as a revenue stream for law enforcement.
Elizabeth Young’s Home (Philly.com photo by Alejandro A. Alvarez)
The City of Philadelphia has almost created a business using civil forfeiture. $44 million has been collected over an 11-year period, along with 1,000 homes and 3,000 vehicles. The Institute of Justice, a 501(c)(3) that helps people with personal property cases, filed an amicus brief for the case in which they call this abuse the “Forfeiture Machine.”
The Justice Department also benefits this from this practice, and their taste for cash has increased over the last three decades, from $27 million in 1985 to $556 million in 1993 and $4.2 billion in 2012. Opponents of this method argue that law enforcement has more of an incentive to search for cash rather than trying to fight drug trafficking.
“If a cop stops a car going north with a trunk full of cocaine, that makes great press coverage, makes a great photo. Then they destroy the cocaine,” said Jack Fishman, a former IRS agent who is now a criminal defense attorney in Atlanta. “If they catch ’em going south with a suitcase full of cash, the police department just paid for its budget for the year.”
For Elizabeth Young, it wasn’t about mountains of cash or cars, but $190 worth of cannabis that her son, Donald Graham, was dealing without her knowledge. Graham pled guilty to both possession and distribution of cannabis. He served no time aside from house arrest, and Young was never charged for a crime.
But prosecutors seized Young’s home and car anyway, claiming that those assets were facilitating Graham’s cannabis sales. At trial, the court argued that Young turned “a blind eye to her son’s illegal conduct on the property,” even though she was not charged with a crime and had no knowledge of his activities.
The use and abuse of civil forfeiture by the DEA calls into question their motivation for fighting against cannabis legalization. In 2013, the DEA collected $18 million through its Cannabis Eradication Program alone. A bipartisan bill was introduced in 2015 by Rep. Ted Lieu (D-CA) and Rep. Justin Amash (R-MI), who represent two states that have legalized cannabis. The legislation appears to be in committee.
The Mayor of Philadelphia says marijuana should be legal and sold in liquor stores. On April 10, in an interview on WHYY Radio Times, Jim Kenney said,
“To me we have the perfect system to set up the legal recreational use of cannabis through a controlled state store system allowing the state to capture all the income that is going underground….The hardest place to get served underage in Philadelphia…was a Pennsylvania state liquor store.”
A Powerful and Timely Statement:
His argument is not that marijuana is such a wonderful product, but that rather than seeing all the money from underground and quasi-illegal sale of a product, why can’t the state make the distribution as safe as possible, and cop the revenue from the sales. That’s a pretty credible endorsement from a mayor. It’s also very business-like.
Currently, possession of marijuana is illegal in Pennsylvania, which lags behind many other states in the decriminalization of personal use. There are twin bills making their way through Pennsylvania’s house and senate to legalize medical use of marijuana. However, even if these bills should pass, possession would still be illegal under federal law. The enforcement of marijuana laws in the complex transition, as it gradually moves toward legalization, is complicated. Technically, if you are arrested for a marijuana offense (based on the weight of the marijuana you possess) you may face fines and incarceration. For Mayor Kenney to make his statement was a very gutsy thing. It may also signal some thawing in the ice cold legal attitude toward marijuana.
Status of Marijuana Legalization:
On November 8, 2016, multiple states legalized the use of marijuana for either medical or full recreational use. Legalizing marijuana was on the ballot in nine states last November. All these legalization measures passed except in Arizona. Four states voted to legalize medical use and four states legalized marijuana for anyone over the age of 20. Now 20 percent of the U.S population live in states where marijuana is legal. More than 60 percent of the country lives where medical use of marijuana is legal.
A Tangle for Federal Politicians:
This is a very complex issue. Politicians at the federal level, who have always fought for “states rights” on economic matters, will now face the choice of strengthening federal laws outlawing marijuana against the electoral judgements of the citizens of states which have decriminalized marijuana at some level. John Hudak, of the Brookings Institution described the political situation by saying,
“What happened in this election was big for marijuana. But what also happened was the status quo in Congress, the same leadership in Congress, who, frankly, is opposed to reform….[the election] can start to embolden the industry…to move policy in the right direction toward their interest in reform.”
The Obama administration had written a memo to let it be known that if states properly administer their liberalized marijuana laws, his administration would not interfere in what they are doing. The Trump administration could well reverse that position. Clearly, Jeff Sessions of Alabama, the current Attorney General (and a long-time states rights advocate) has let it be known, he does not like marijuana.
Some states have set up a legal framework to help people who experienced arrest for marijuana offenses. California, for instance, created a facility for individuals charged with low-level federal marijuana charges (no longer crimes under California law) to have their record expunged by state courts. This kind of statewide legal reform has broadened the conversation about criminal justice in general, and the power of states.
Whether or not states laws favor legalization, federal law still dictates the policy of interstate institutions. Trucking will not be able to transfer marijuana products across state lines. Banks will not be able to accept marijuana money (unless it’s “laundered.”).