Hudson Prosecutor Routinely Violates Rights in Forfeitures

February 24, 2017

Hudson County Prosecutor forces people to pay $175 fee to challenge seizures as low as $11

The Hudson County Prosecutor's Office routinely deprives people of due process after their property has been seized, the ACLU-NJ said today in a court filing (PDF) challenging the county's civil asset forfeiture practices. The County Prosecutor's Office unlawfully combines unrelated civil asset forfeiture cases together, resulting in court fees that often exceed the value of the property taken, making it nearly impossible for people to challenge the seizures.

Civil asset forfeiture is a process that allows law enforcement to seize any assets that they suspect may be connected with a crime, even if a person is never charged with any crime. The prosecutor can then file a civil suit to keep the property.

"The Hudson County Prosecutor's Office has made it difficult, and in many cases virtually impossible, for people to challenge the seizure of their property," said ACLU-NJ Staff Attorney Rebecca Livengood. "The Prosecutor's Office has abdicated its duty to respect the rights of New Jerseyans — especially those with the fewest resources to begin with — in a blatant affront to due process."

The ACLU-NJ represents Jermaine Mitchell, whom the Hudson County Prosecutor sued in order to keep $171 taken from him during an arrest; the court fees to challenge the seizure were $175. In this case, the Hudson County Prosecutor combined together 20 different defendants into one court case, even though each person's seizure had nothing to do with any others. Although this practice is routine in Hudson County, New Jersey law only allows cases to be joined together when they involve the same "transaction or occurrence."

By combining multiple forfeitures into one lawsuit, the county meets the $15,000 requirement to bring a case in the Law Division of Superior Court rather than the Special Civil Part, a court established to hear smaller controversies. While the Special Civil Part imposes much lower fees to respond, the Law Division sets a fixed fee of $175. No other county in New Jersey engages in such a practice to the ACLU-NJ's knowledge.

"A personal injury lawyer can't bundle five unrelated car accident cases into one single lawsuit, and the Hudson County Prosecutor's Office can't illegally combine multiple civil asset forfeiture suits into one simply because it makes it cheaper and easier to seize people's property," Livengood said.

The ACLU-NJ recently issued a police reform blueprint that recommended ending civil asset forfeiture in New Jersey, given the incentives policing for profit creates to abuse police authority. The practice disproportionately harms people in poverty, who are more likely to be stopped and frisked on the street and who cannot afford to challenge seizures or to hire private attorneys to fight for their seized assets. Someone in poverty may have a public defender for a criminal case, but currently no legal service providers in New Jersey provide free representation to low-income defendants in civil forfeiture cases.

The papers Mitchell received on how to challenge the forfeiture included a list of 11 supposed options for low-cost legal representation, but not one of the organizations on the list could have provided legal help for forfeiture cases. Indeed, one organization was shut down in 2012 for fraudulently pretending to provide legal services.

"Almost no one is going to spend more money to get property back than what that property is worth," said Livengood. "Based on even the slightest suspicion of involvement in a crime, the Hudson County Prosecutor's Office can take a person's property and slam the door on any attempts to get it back."

According to public records, Hudson County has the highest number of civil asset forfeitures in New Jersey by far, even in comparison to more populated counties. One action in February 2016 combined forfeiture cases against 63 people. One 2015 seizure included in a case combined with 28 others, police took $11 from a person; it would have cost them a minimum of $164 to get $11 back.

"The case of Jermaine Mitchell is a textbook example of why civil asset forfeiture needs to be scrapped in New Jersey," said ACLU-NJ Public Policy Counsel Ari Rosmarin. "Our legal system should protect the rights of New Jersey communities, not shake them down for revenue."

The request for interlocutory review (PDF) filed in the Appellate Division today asks the court to allow Mitchell to challenge the forfeiture. An earlier ruling that rejected his motion to dismiss contradicted New Jersey law, according to today's filing from the ACLU-NJ.

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