New York began the year by constraining one of the state’s most absurd injustices. Thanks to a constitutional amendment that took effect Jan. 1, sitting state lawmakers and other “public officers” condemned for public corruption may have to give up their pensions. Each year, more than a dozen former lawmakers and officials gather over half a million dollars in pension payments, even after they were convicted on bribe, tax fraud and other corruption charges.
Outraged, lawmakers first passed the Public Integrity Reform Act in 2011, which finally permitted judges to reduce or revoke pensions for convicted public officials. But under the state Constitution, any state pension or retirement advantages “shall not be diminished or impaired.” So the new pension-forfeiture provisions only applied to those who joined the government’s payroll after 2011. It takes amending the Constitution (a measure voters backed last November) to repair things.
Yet it’s still simpler to take a completely innocent person’s cash or car than to confiscate a corrupt politician’s taxpayer-funded retirement, thanks to New York’s abysmal civil forfeiture laws. But a new bill backed by Gov. Cuomo would finally grant ordinary citizens some of the same protections afforded scandal-tarred public servants.
The differences between pension forfeiture and civil forfeiture for those outside the government are striking. Under civil forfeiture, law enforcement can confiscate property that it assumes is tied to the drug trade, without ever filing charges. Since these cases progress in civil court, they bypass many of the protections otherwise guaranteed to criminal defendants.
In fact, according to one former head of the Asset Forfeiture Unit at the Bronx DA’s Office, property owners were never criminally charged in a staggering 85 percent of the NYPD’s forfeiture cases.
This is about as blatant a violation of due procedure and property rights as you can get.
In stark contrast, the new pension-forfeiture rules target convicted criminals and have safeguards to prevent innocent third parties from becoming collateral damage. Pensions can only be confiscated after a felony conviction with a “direct and actual relationship to the performance of a public officer’s existing duties.” Offenses like bribery, embezzlement and larceny would almost certainly be covered, but not all criminal wrongdoing would be included.
Moreover, while the decision to reduce or revoke a pension ultimately lies within a judge’s discretion, that ruling must consider if the forfeiture would be proportional to the crime’s severity or cause “undue hardship” on the felon’s children, spouse or other dependents. Both provisions should ensure that any forfeiture complies with the Eighth Amendment’s ban on “excessive fines,” a protection several courts have denied to property owners fighting civil forfeiture.
Now Albany may soon end this obscene double standard.
In his State of the State Address, Gov. Cuomo proposed “transforming civil asset forfeiture” as component of comprehensive criminal-justice reform. Under a bill introduced last month, property could only be forfeited in civil court if a litigant is first convicted in criminal court.
This would ban forfeiture in cases where an owner has been acquitted or had criminal charges dismissed, and so protect the innocent from abusive confiscations. Such protections are on the books in 14 states.
Cuomo’s proposals are a welcome begins. But any reform bill must address “equitable sharing,” a federal program that has long permitted law enforcement to circumvent protections in state law.
The program lets police and prosecutors partner with a federal agency to seize property under federal law in exchange for up to 80 % of the proceeds, a higher bounty than New York law allows. In 2000-2013, New York law enforcement collected over $610 million in equitable-sharing funding, or nearly double what was taken under state law during that time, according to the Institute for Justice.
The Obama administration curtailed one equitable-sharing program, known as “adoption,” that lets local and state agencies transfer seized property to the feds, who then “adopt” the case. Adoption accounted for more than 40 % of all NY seizures made through equitable sharing. But Attorney General Jeff Sessions removed the Obama limits, making it simpler for cops to become robbers.
New York is moving to end its two-tier justice system that advantages crooked politicians and officials over ordinary New Yorkers who have done nothing wrong. But it’s way past time to retire civil forfeiture, once and for all.