Police in Berkshire County arrived at the home of Malinda Harris on March 4, 2015, and demanded the keys to her 2011 Infiniti, saying her son Trevice was suspected of dealing drugs and “warning her not to get involved with her son’s case,” according to court filings.
More than five years later, in October 2020 — and in the middle of the pandemic — Harris was finally served with a civil forfeiture complaint by the district attorney’s office for the confiscated car. Her son had been murdered in Ohio two years earlier. And while Trevice had from time to time borrowed the car, law enforcement never produced any evidence that the car had been used for dealing drugs.
It wasn’t until a suit was filed on Harris’s behalf by the Phoenix-based Goldwater Institute, challenging the state’s civil forfeiture law, that the Berkshire district attorney’s office decided to give Harris back her car.
No, you don’t have to be a drug kingpin to fear the long arm of the law will confiscate a car or cash. In fact, you don’t have to be found guilty of a crime, or even accused of one.
Massachusetts stands alone as having the lowest burden of proof in the nation, allowing district attorneys to seize money and property that might be connected to the commission of a crime.
Collectively, these civil asset forfeitures amount to a tidy sum — some $20 million during the last reported three-year period — with few checks and little transparency on how those funds are used by law enforcement.
And the process of getting the cash or property back is so onerous that about 80 percent of the owners of confiscated assets never make a legal claim for them — many because they can’t afford a lawyer to do so. Often the cost of a lawyer would exceed the amount of the forfeiture. A report by the Institute for Justice puts the median value of forfeitures at about $1,300.
Lisa Hewitt, general counsel of the Committee for Public Counsel Services and a member of a special commission assigned to study the issue, told a legislative committee this fall that their data showed about 75 percent of forfeitures involved sums of less than $5,000, and half were under $2,000.
State lawmakers concerned both about the possible disparate impact on poor and minority defendants and the lack of transparency on how the forfeited money is spent are taking a fresh look at the issue and Massachusetts’ outlier status.
When the state’s civil forfeiture statute was first enacted in 1971, the state had “the burden of proving all material facts by a preponderance of the evidence.” In 1989, the Legislature lowered the standard to “probable cause” — the same as federal law at the time. In 2000, Congress raised the federal standard to “preponderance of the evidence,” but Massachusetts did not raise its standard and therefore remains the legal cellar dweller.
For law enforcement, asset forfeiture remains a source of easy money, with few strings attached.
A report prepared by the state’s trial court system for fiscal 2017-2019 found 3,047 civil asset forfeitures, totaling $6.2 million, $7.5 million, and $6.5 million, respectively. The bulk of those seizures (76 percent) were cash. Motor vehicles, 609 of them, made up 15 percent of seizures, and the rest (9 percent) were a hodge-podge of iPhones, digital tablets, computers, scooters, the occasional Rolex watch, and, somewhat mysteriously, a “shoe collection.”
By dollar amounts, the biggest “winners” in the forfeiture game for that three-year period were Suffolk County ($5.5 million), Essex ($3.8 million), and Worcester ($3 million).
The 2018 Criminal Justice Reform Act imposed some reporting requirements on law enforcement agencies on the receiving end of those funds — some of which are passed along from district attorneys to police departments in their counties. But a special commission assigned to study several aspects of the forfeiture law still found “deficiencies” and “vague categorizing” of expenditures and grants.
The system may be somewhat improved from when Worcester County District Attorney Joe Early’s office used civil forfeiture funds to buy a Zamboni for a local ice rink, a purchase criticized in a 2013 report by the state auditor, but who’s to say what “equipment” serves a “law enforcement purpose”?
The legislative commission’s report, issued last July, recommends raising the burden of proof to at least bring the state in line with the federal government and about 20 other states, improving reporting requirements, imposing a minimum threshold for seizures (many states set the minimum at $1,000), and providing public counsel for asset forfeiture proceedings to those who have already been represented by public defenders.
Even better is the path taken just this summer by Maine, which joined three other states in abolishing its civil asset forfeiture laws altogether. It now requires an actual criminal conviction for law enforcement to seize property or cash. The Maine reforms followed disclosures about law enforcement agencies failing to turn over forfeitures to the state’s general fund as required by law.
Currently here in Massachusetts, civil asset forfeiture doesn’t discriminate — it punishes the innocent along with the guilty. It gives police departments a ready slush fund and an added incentive to keep seizing more assets.
It’s a perverse system that cries out to be ended.
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