June 3, 2021:- Today the Asset Forfeiture Commission held its sixth meeting, which consisted of a presentation by Attorney Dan Alban, co-director of the National Initiative to End Civil Forfeiture at the Institute for Justice (IJ). You can watch the hearing by clicking here.
Among Attorney Alban’s recommendations:
- Not simply increasing the evidentiary standard from probable cause to preponderance of the evidence/beyond reasonable doubt. Instead, remove the financial incentive for the practice.
- Using criminal asset forfeiture only and abolishing civil asset forfeiture, as New Mexico has done. IJ’s goal is not to defund the police but to restore due process. “Crime should not pay,” he said, “and it is legitimate for the State to confiscate the proceeds of crime.”
- Enacting anti-circumvention laws to prevent State law enforcement simply outsourcing forfeiture to their federal counterparts. Massachusetts engages in “equitable sharing” with the federal government far more than most other States (the Commonwealth is 48th in IJ’s ranking)
- Requiring greater detail in law enforcement’s reporting requirements in Massachusetts in connection with proceeds of civil asset forfeiture. Attorney Alban pointing to the 2018 report which states that 6% of the proceeds went to travel and training, 7% to equipment, with 53% listed as “other.”
After the presentation, Norfolk District Attorney Michael W. Morrissey said that he agreed with the need for more information, which should be a prerequisite to any overhaul of the system in his opinion. He stated that forfeiture is necessary to deal with those who are “undercutting” the “pretty successful consumer oriented sale of drugs,” i.e. marijuana, in Massachusetts. He held up a photograph of one of the houses he had seized, stating that it had been used as a “grow house.”
DA Morrissey also stated that prosecutors stay (i.e. pause) civil forfeiture cases until the criminal case is resolved. My review of some of the 70 or so civil forfeiture cases filed under MGL c 94C, section 47, in Hampden County Superior Court over the last year did not support that assertion but that may be a result of my sample size or of my misreading the docket. I used masscourts.org and searched under Administrative Civil Actions. Readers with the time and inclination can double-check my search in Hampden Superior Court and look for cases in the Superior Court in other counties.
In response to DA Morrissey’s request for one example of an innocent owner whose property had been forfeited in Massachusetts, Attorney Alban cited the Motel Caswell case in Tewksbury, in which the owner had not only reported criminal activity but had cooperated in a sting operation. Law enforcement seized his motel anyway.
DA Morrissey pointed out that the Motel Caswell case was an instance of “equitable sharing,” i.e. local police working with the federal law enforcement and using federal law. The Malinda Harris case did not come up during the discussion.
Co-chair Senator Jamie Eldridge announced that the commission will issue its report, with recommendations, by July 31, 2021. Between now and then the commission will have one more meeting (date to be announced).
Peter Vickery, Esq., 