Is New Jersey prosecutor combining cases to protect asset forfeitures?

John Crowe
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Posted: Oct 03, 2016 11:45 AM
Is New Jersey prosecutor combining cases to protect asset forfeitures?

Jermaine Mitchell was given two bad options. Allow the government to keep the $171 dollars seized from him during an arrest, or lose an additional $4 dollars if his appeal to get the money back proved successful.

When Mitchell was arrested in April and charged with multiple counts of possession and distribution of narcotics, Jersey City Police seized the $171 dollars he had on him. One month later he received a letter informing him that he would have to pay $175 dollars to file an appeal if he wanted his money back.

Mitchell’s money was seized under the state’s civil asset forfeiture law, which allows police to seize assets suspected of being involved in criminal activity.

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MONEY TALKS: The ACLU says a New Jersey prosecutor combined several small seizure cases into one larger one to make challenging the individual seizures a money-losing proposition.

Mitchell is now one of 21 defendants included in a civil action filed by the Hudson County Prosecutor’s Office. According to the New Jersey ACLU, which is representing Mitchell in a court filing submitted Sept. 8, the Hudson County Prosecutor’s office unlawfully combined the 21 unrelated civil forfeitures in a blatant attempt to deprive defendants of their right to an appeal by making the filing of such an appeal financially undesirable.

Under standard procedure, Mitchell would have paid a much smaller $15 dollar filing fee to appeal for the return of the $171 dollars seized from him during his arrest. Mitchell was deprived of this option because the Hudson County Prosecutor’s decision to combine his case with the cases of 20 other defendants in one civil action.

The defendants named in the action were charged with similar crimes in Jersey City, Bayonne and Union City between January and April of this year.

The sum of the assets seized from those defendants totaled just over $10,000 dollars in cash and included one vehicle, which pushed the combined asset value past the $15,000 dollar threshold required to qualify the case for Superior Court.

This move — from the Special Civil Part, a court that presides over smaller claims — to the Division of the Superior Court, increased the filing fee from the $15 dollars that would have been required had Mitchell’s case been filed alone, to the $175 dollars Mitchell and his fellow defendants are each expected to pay.

The New Jersey ACLU is challenging the August decision by trial court Judge Mary K. Costello that the inclusion of the 21 individual seizures into one case was lawful because the cases “concerned a common question of law.”

The ACLU argues that New Jersey law stipulates the cases must not only “concern a common question of law” but also a “common transaction or occurrence.” While the defendants were charged with similar crimes, they do not know each other and were charged in different cities, on different days, over a period of a few months.

“They don’t allege conspiracy against most of these defendants,” Rebecca Livengood, an attorney with the ACLU, told NJ.com. “It’s certainly not that all the defendants are part of a common scheme.”

A state appeals panel will rule on the matter.

Policing for profit

According to the NJ ACLU,  the practice of joining separate forfeiture cases in this manner is unique to Hudson County.

But in Hudson County, the tactic appears to be commonplace.

Assets were seized from more than 500 defendants so far this year in the county, the state’s fastest-growing. The individual cases were combined into fewer than 30 civil actions. Notably, in more than half the cases the defendants had less than $175 dollars seized.

Livengood told Watchdog she believes the Hudson County Prosecutor’s Office is looking to save money by “shifting the cost onto the people they’re prosecuting” by filing multiple unrelated cases together as one action.

Civil forfeitures have come under public scrutiny in recent years as critics allege law enforcement agencies have expanded the scope of what qualifies for seizure beyond reasonable limits.

The total annual forfeiture across 14 states — the only ones that have reliable long-term data — more than doubled from 2002 to 2013, and federal asset forfeiture increased by 4,667 percent.

Law enforcement officials maintain the policy is a helpful tool that facilitates the disruption of criminal activity.

Hudson County Prosecutor Esther Suarez declined to comment when asked about the bundling of unrelated forfeiture cases. But Suarez earlier told NJ.com that her office was “acting properly,” pointing out that the practice of combining the cases of multiple defendants has been upheld by a Superior Court Judge.

Suarez also defended the effectiveness of civil forfeiture in reducing crime.

“Proceeds from any criminal activity are often utilized by defendants to purchase goods which are used to facilitate future crimes,” she said. “The HCPO will continue to take all lawful action to ensure that crime in our county does not pay and that any proceeds of a crime are removed from the hands of the criminals and used for a lawful public purpose.”

The Institute for Justice, a nonprofit civil liberties advocacy organization, questions that narrative.

The IJ and allied groups have sought to draw attention to what they view as “policing for profit,” in which civil forfeiture laws incentivize police to seize property to pad their own departmental budgets.

Opponents of civil forfeiture also criticize the policy’s broad scope in allowing the seizure of property on mere suspicion, absent any conviction.

They view use of civil forfeiture against low-income defendants as especially problematic because such individuals often lack the legal resources to appeal the seizure.

Of the 11 low-cost legal organizations suggested to Mitchell by the Hudson County Prosecutor’s Office, none had the resources to aid in a forfeiture case. One had been shuttered in 2012 for fraudulently claiming to offer legal services.