Will: When a house is accused of a crime
"The thing that is in Room 101 is the worst thing in the world. ... The worst thing in the world varies from individual to individual."
— George Orwell, "1984"
PHILADELPHIA – For Christos and Markela Sourovelis, for whom the worst thing was losing their home, "Room 101" was Courtroom 478 in City Hall. This "courtroom's" name is Orwellian: There was neither judge nor jury in it. There the city government enriched itself — more than $64 million in a recent 11-year span — by disregarding due process requirements in order to seize and sell the property of people who have not been accused, never mind convicted, of a crime.
The Sourovelises' son, who lived at home, was arrested for selling a small amount of drugs away from home. Soon there was a knock on their door by police who said, "We're here to take your house" and "You're going to be living on the street" and "We do this every day." The Sourovelises' doors were locked with screws and their utilities were cut off. They had paid off the mortgage on their $350,000 home, making it a tempting target for policing for profit.
Nationwide, proceeds from sales of seized property (homes, cars, etc.) go to the seizers. And under a federal program, state and local law enforcement can partner with federal authorities in forfeiture and reap up to 80 percent of the proceeds. This is called — more Orwellian newspeak — "equitable sharing."
No crime had been committed in the Sourovelises' house, but the title of the case against them was the Commonwealth of Pennsylvania v. 12011 Ferndale St. Somehow, a crime had been committed by the house. In civil forfeiture, it suffices that property is suspected of having been involved in a crime. Once seized, the property's owners bear the burden of proving their property's innocence. "Sentence first — verdict afterwards," says the queen in "Alice in Wonderland."
In Courtroom 478, the prosecutors usually assured people seeking to reclaim their property that they would not need lawyers. The prosecutors practiced semi-extortion, suggesting how people could regain limited control of their property: They could sell it and give half the proceeds to the city. The "hearings" in Courtroom 478 were often protracted over months, and missing even one hearing could result in instant forfeiture.
The Sourovelises were allowed to return to their house only after waiving their rights to statutory or constitutional defenses in a future forfeiture action. Such action was forestalled when their case came to the attention of the Institute for Justice, public interest litigators who never received the "You can't fight city hall" memo. It disentangled the Sourovelises from the forfeiture machine, shut down Courtroom 478, and now is seeking a court ruling to tether this machine to constitutional standards.
There might somewhere be a second prominent American who endorses today's civil forfeiture practices, but one such person is "very unhappy" with criticisms of it. At a 2015 Senate Judiciary Committee hearing on forfeiture abuses, one senator said "taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong," and neither is law enforcement enriching itself from this. In the manner of the man for whom he soon will work, this senator asserted an unverifiable number: "95 percent" of forfeitures involve people who have "done nothing in their lives but sell dope." This senator said it should not be more difficult for "government to take money from a drug dealer than it is for a businessperson to defend themselves in a lawsuit." In seizing property suspected of involvement in a crime, government "should not have a burden of proof higher than in a normal civil case."
IJ's Robert Everett Johnson notes that this senator missed a few salient points: In civil forfeiture there usually is no proper "judicial process." There is no way of knowing how many forfeitures involve criminals because the government takes property without even charging anyone with a crime. The government's vast prosecutorial resources are one reason it properly bears the burden of proving criminal culpability "beyond a reasonable doubt." A sued businessperson does not have assets taken until he or she has lost in a trial, whereas civil forfeiture takes property without a trial and the property owner must wage a protracted, complex and expensive fight to get it returned. The Senate Judiciary Committee might want to discuss all this when considering the nominee to be the next attorney general, Alabama Sen. Jeff Sessions.
George Will is a columnist for The Washington Post.