Massachusetts has a progressive reputation and a legislature that has long been controlled by Democrats, many of whom have supported police and criminal justice reform, especially after George Floyd's death in Minneapolis last year. Yet the Bay State also has what the Institute for Justice describes as "the worst civil forfeiture laws in the country," which earned it an F in the most recent edition of the organization's Policing for Profit report. Although reform efforts have been almost uniformly unsuccessful so far, a new report from a special commission established by the legislature in 2019 may finally prompt reconsideration of laws that allow police to take allegedly crime-tainted property based on minimal evidence without proving that the owner did anything illegal.
Massachusetts authorizes civil forfeiture in cases involving drug offenses, drunk driving, human trafficking, and money laundering. In practice, drug offenses account for the vast majority of civil forfeitures. Massachusetts is the only jurisdiction in the country that allows forfeiture based on nothing more than probable cause to believe that an asset facilitated a crime or represents the proceeds of illegal activity. Once the government establishes probable cause, the burden is on the owner to prove that his property is not subject to forfeiture.
"The standards of proof for civil asset forfeiture across the country vary greatly," the Special Commission to Study Civil Asset Forfeiture Policies and Practices in the Commonwealth notes, "but Massachusetts clearly stands alone with the lowest standard. The majority of states and the federal government require either a preponderance [of evidence] or clear and convincing evidence." Four states—Maine, New Mexico, Nebraska, and North Carolina—allow forfeiture only after a criminal conviction based on proof beyond a reasonable doubt. The commission recommends that the Massachusetts legislature raise the standard of proof for civil forfeitures.
The standard of proof, however, comes into play only when property owners challenge forfeitures in court. In fiscal years 2018 and 2019, the commission found, 80 percent of the 2,100 forfeiture cases resolved in the Massachusetts Superior Court were uncontested, and 74 percent of cases resulted in default judgments. While the failure to challenge a forfeiture might be taken as an admission of guilt, there are other reasons why owners let the government keep their property without putting up a fight.
In most cases, hiring a lawyer costs more than the value of the asset. In fiscal years 2017 through 2019, money accounted for 76 percent of forfeited assets in Massachusetts. While the dollar amounts ranged from a measly $6.20 to an impressive $738,317, three-quarters of cash forfeitures involved less than $5,000, while half involved less than $2,000 and a quarter involved less than $1,000. Forfeitures of less than $500 were twice as common as forfeitures of more than $25,000. Aside from money, forfeited assets included cars, scooters, jewelry, Rolex watches, iPhones, shoe collections, computers, tablets, TV sets, and GPS systems.
The remarkable pettiness of many forfeitures helps explain why owners generally do not bother to contest them. It also belies the notion that police are targeting drug kingpins, as opposed to low-level dealers or people associated with them—such as Malinda Harris, the Berkshire County woman whose car was seized in 2015 because she lent it to her son, who was accused of selling drugs. (While the commission found that forfeiture cases generally were resolved within a year, Harris did not get a chance to challenge the forfeiture of her car until five years after it was seized.) Finally, the typically low value of seized assets vividly illustrates the money-grubbing behavior encouraged by civil forfeiture—especially in Massachusetts, where law enforcement agencies keep up to 100 percent of the proceeds.
The commission recommends several reforms to address this situation. It suggests that the legislature set a minimum dollar threshold for seizing assets, as other states have done. It also suggests that criminal defendants who qualify for public defenders be allowed court-appointed attorneys in related forfeiture cases, which it says is "one way to address the high default rates seen in those proceedings." And it says forfeiture proceedings should be automatically delayed until after the criminal case is resolved.
Those changes would improve due process for owners of seized property who face criminal charges, but they would not help tangentially implicated owners such as Harris, who was never charged with a crime. In fact, police did not even allege that her son used her car to sell drugs or that she was aware of his illegal activity. Although Harris challenged her state's civil forfeiture procedures with help from the Goldwater Institute, few innocent owners are lucky enough to receive pro bono legal assistance.
The commission also recommends a reform that would have a much broader impact. It says proceeds from forfeitures should go into the general fund or be earmarked for a specific program instead of augmenting the budgets of the same agencies that initiate them. That change, it notes, "would remove an incentive to seize property in the budgetary self-interest of law enforcement." Brad Cates, a former director of the Justice Department's civil forfeiture program who is now a leading critic of the practice, thinks that kind of reform is the single most effective way to curtail abuses, since it eliminates the financial motive that encourages police and prosecutors to elevate profit above public safety.
What exactly happens to the money that law enforcement agencies make by taking people's stuff? That remains a bit of a mystery in Massachusetts, despite recently enacted reporting requirements.
"District attorneys and the attorney general included expenditures for 'Other Law Enforcement Purposes,'" the commission notes. "This designation is vague and covers a wide range of expenditures that the Legislature may want to clarify." In other states, forfeiture funds have been used for questionable or flagrantly illegal expenditures on items such as extravagant training junkets, booze, fancy parties, concert and sporting event tickets, floral arrangements, security systems for prosecutors' homes, marijuana, and sex for hire.
The commission also notes that the official reports "exclude forfeited money retained by police which is not deposited into the District Attorney Law Enforcement Trust Fund." The commission "was unable to determine how that money is tracked
in the custody of the police if not deposited in the trust fund." It suggests the legislature "may want to explore the retention of funds by police departments without depositing them into a trust fund and documenting the spending by the police of funds allocated to them by the district attorneys."
Lee McGrath, senior legislative counsel at the Institute for Justice, says forfeiture reform in Massachusetts has been frustrated so far because people sympathetic to law enforcement tend to serve on legislative committees with jurisdiction over the subject. "You don't have the progressives that one thinks of in Massachusetts serving on the relevant committee where these bills are introduced," he says. Alex Marthews, a Massachusetts resident who runs the pro-reform group Restore the Fourth, notes that forfeiture reform "affects the budgets of the police, and the costs of going against the police in the legislative context are high."
The commission's conclusions were strongly influenced by information from the Institute for Justice, whose 2020 Policing for Profit review is included in the commission's report. "The special commission's report confirms what we have long argued: Civil forfeiture is one of the greatest threats to private property and civil liberties in Massachusetts today," says Institute for Justice Senior Attorney Dan Alban, who testified before the commission. "Massachusetts has the absolute worst civil forfeiture laws in the nation. By adopting the special commission's worthwhile recommendations, the Massachusetts Legislature can end policing for profit and become a leader in forfeiture reform."