For decades, Massachusetts law enforcement has benefited from a steady supply of cash — with few strings attached — from confiscated money and property that might be connected with the commission of a crime.
Some agencies have used that money wisely; some not so much. But now that the state Senate is considering taking those slush funds out of the hands of district attorneys and police departments, the squawking can be heard from Western Massachusetts to Beacon Hill.
“If this bill becomes law, police departments and district attorneys lose money on which we presently rely,” Hampden District Attorney Anthony Gulluni said in a statement. “Many community programs will suffer the loss of these needed funds made possible by our efforts in forfeiture and will, in fact, support and assist the profitability of drug dealing in this Commonwealth.”
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Never mind that the law has often been used to confiscate cars borrowed from unwitting friends or family, or property from innocent third parties, or even from those eventually found innocent of a crime. Getting that cash or property returned has in some cases taken years of legal battling. Many, of course, don’t have the resources even to try. This is no time for lawmakers to go wobbly on reforming a law that is an outlier nationally and that provides a perverse incentive for law enforcement to keep confiscating millions of dollars in assets every year.
The newly drafted bill that emerged recently from the Senate Ways and Means Committee aims first and foremost to bring Massachusetts into line with the standard used by most other states and by the federal government — that the government has to prove to the court “by a preponderance of the evidence” that the property is forfeitable. The current standard is the much lower “probable cause.”
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The bill also prohibits the attorney general or district attorneys from confiscating assets under $250 in value, and it provides the right to a public counsel in forfeiture proceedings for those who had one at trial or for owners not involved in a criminal proceeding but who can prove indigency.
No longer permitted under the bill is the official use by law enforcement of any of that confiscated property. (An Indiana case involving a confiscated Range Rover seized in connection with a $225 drug bust went all the way to the Supreme Court before it was ordered returned.)
The section that raises law enforcement hackles is the one that would require all forfeited money and the proceeds of any sale of assets go into a special state trust fund that would be subject to appropriation. Its use would be designated for a number of worthy programs — jail diversion, violence prevention, substance use disorder treatment, or general “crime prevention purposes.”
But the trust fund concept would also mean no more photo-ops of DAs turning over those checks to community groups or, say, standing surrounded by budding dancers at the local Boys & Girls Club as Gulluni was for the $7,000 check from his forfeiture fund that helped renovated a dance studio.
And let’s not forget that DAs are elected.
Police chiefs, on the other hand, sometimes use their cut of the forfeiture funds for nifty new technology without the benefit of having to run such purchases by local governing bodies — like enabling the Boston Police Department’s propensity for spyware.
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Gulluni referred to the “Robin Hood effect” of asset forfeiture — “taking money from those who misuse it and providing to those to do good with it.” Except the way it actually works is that asset forfeiture too often takes from those who can least afford it — the Committee for Public Counsel Services provided data this fall that about half of all forfeitures were under $2,000 — and giving it to a DA’s favorite causes.
According to data gathered by the state’s Trial Court, the overwhelming number of those who have had money or property confiscated never pursue a legal claim for it. Often that’s because the cost of a lawyer would exceed the potential proceeds.
The Senate has already delayed consideration of the bill a week and now faces a dozen amendments, many of them aimed at restoring control over those funds to district attorneys or police departments, or efforts to replace the funds, which based on past years can amount to $6 million to $8 million a year.
The legal parameters of civil asset forfeiture have long cried out for reform. But that is only part of the problem. Removing the financial incentives for abuse — by taking district attorneys and police departments out of the equation — is just as essential.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
