Abolish civil asset forfeiture, commission told

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.”

Norfolk DA Michael W. Morrissey

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).

WATCH LIVE: civil asset forfeiture commission

June 1,2021:- On Thursday, June 3, starting at 10:00 a.m., the Massachusetts commission on civil asset forfeiture will hold a meeting that you can watch live via malegislature.gov.

Readers will recall that civil asset forfeiture is where law enforcement seizes property that they have mere probable cause to believe may have been used in connection with a crime and then the owner has to go to court to prove innocence in order to get their property back. The system lets police and prosecutors treat ordinary people like an ATM.

Photo by Toa Heftiba on Unsplash

Does this really happen in Massachusetts? Yes, as the experience of Malinda Harris, covered in Reason magazine, illustrates:

“On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris’ 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son’s illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.”

Jacob Sullum, Reason, 3.2.2021

Law enforcement seized and held Malinda Harris’s car for five years before even allowing her an opportunity to try to get it back. There is nothing extraordinary about the experience of Ms. Harris, other than the fact that she came to the attention of a nonprofit organization that was able to represent her for free. That is what makes her case exceptional.

If you think that Ms. Harris’s case is an outlier, here are some facts and figures from the Massachusetts Trial Court that speak for themselves:

  • In the period 2017-19 the Massachusetts attorney general and district attorneys seized more than $20 million from people who had not been accused of, let alone convicted of, any crime
  • In 24% of cases the amount of money seized was between $2,000 and $4,999, in 25% the amount was less than $2,000, and in one case was $6.20
  • Section 47(d) of chapter 94C of the Massachusetts General Laws puts the burden on a claimant to prove that the property is not forfeitable
  • In most cases the legal fees that an innocent owner would incur in making a claim would exceed the value of the seized property
  • In approximately 80 per cent of civil asset forfeiture cases in the period 2017-19 the owner made no claim

I intend to watch the commission’s hearing and to post an update soon afterwards. And I will be right on the keyboard as soon as the Judiciary Committee schedules a hearing for the bill that I wrote (H.1724) to provide free counsel in civil asset forfeiture cases.

In the meantime, for the op-ed Malinda Harris co-authored in USA Today click here. For the latest report from the Institute for Justice, titled Policing for Profit, click here.

For a Cato Institute interview with Attorney Tom Sandefur on the subject of civil asset forfeiture (with a mention of the Malinda Harris case) click here.

And lest you think that this is a libertarians-only hobbyhorse, click here to read about the ACLU’s position.

Featured image by Logan Weaver on Unsplash

Civil Forfeiture Commission Reconvenes

May 12, 2021:- A few years ago, by way of an outside section to the budget, the Massachusetts Legislature established a Civil Forfeiture Commission to “study civil asset forfeiture policies and practices in the commonwealth… [and] submit a report of its study and any recommendations, together with any draft legislation necessary to carry those recommendations into effect.”

Before reading any further, it may be helpful to know these key facts about civil asset forfeiture in Massachusetts:

  • In the period 2017-19 the Commonwealth, through civil asset forfeiture actions under section 47(d) of chapter 94C of the General Laws by the attorney general and district attorneys, seized assets from people who had not been accused of, let alone convicted of, any crime, including more than $20 million in money;
  • In 24% of cases the amount of money seized was between $2,000 and $4,999, in 25% the amount was less than $2,000, and in one case was $6.20;
  • The statute puts the burden on a claimant to prove that the property is not forfeitable; and
  • In most cases the legal fees that an innocent owner would incur in making a claim would exceed the value of the seized property.

Click here for my previous post on the subject.

On March 30, 2021, the Commission reconvened after a lengthy COVID-19 State of Emergency-related hiatus. Here is a link to the video of the meeting.

When listening to the chair, Majority Leader Representative Claire Cronin, you will notice that she reminds the members of the need to confine their work to the charge that the Legislature gave them. When Senator Jamie Eldridge, Senate chair of the Joint Committee on the Judiciary, suggests (at around minute 50) asking presenters to include stories from people directly affected by civil asset forfeiture, Representative Cronin says that it “may be beyond the scope of the charge.”

This is odd.

If you read the charge (follow the link above in the words “outside section”) you will see that one of the commission’s express tasks is to conduct “an analysis of any racial or socioeconomic disparities in the application of civil asset forfeiture laws in the commonwealth.” Analysis means something more than merely presenting the figures. Hearing the voices of ordinary people with first-hand experience of the practice could be very helpful in analyzing the racial and socioeconomic disparities.

In addition, the charge begins with the customary tautologous phrase, “the study shall include, but not be limited to.”*

The commission’s remit is quite broad, certainly broad enough to listen to residents who have committed no crime but have had their property seized by the government. I hope that Senator Eldridge and other members of the commission will persevere and invite voices from outside the political class to help the commission really analyze the disparate impacts of civil asset forfeiture.

Next the commission is going to look at the annual reports that District Attorneys file with the Legislature about how they spend the fruits of their seizures; seek data from the State Police about the number of forfeitures connected to cases that result in prosecutions; and ask Attorney General Maura Healy how long her office holds on to seized assets.

Stay tuned.

* I call it tautologous because the word “include” means to be part of a thing, as opposed to being the whole thing. Adding “not limited to” is redundant, in my opinion. Students of legislative drafting, please note: Nobody cares about my opinion.

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Photo by LOGAN WEAVER on Unsplash

Civil Asset Forfeiture

March 6, 2020:- Civil asset forfeiture is a way for law-enforcement agencies to acquire property (money, vehicles, real estate, etc.) from people who have not been charged with, let alone convicted of, any crime. If somebody — anybody — used the property, or even just intended to use it, in the commission of a drug crime, the government can take the property, sell it, and keep the proceeds, and all without the rigmarole of a trial.

Under Massachusetts law, G.L. c. 94C, sec. 47(d), if the Commonwealth establishes probable cause (not a very high bar) the burden is on the owner to prove that the property is not forfeitable.

For example, one case in Tewksbury involved local and federal agencies trying to take a motel that had been in the same family for two generations. The reason? Over the course of 14 years during which the owners had rented out rooms approximately 200,000 times there had been 14 drug-related arrests on the premises. There was no suggestion that the owners themselves had done anything wrong.

As an editorial Massachusetts Lawyers Weekly in 2019 stated:

All of this makes it too easy for property to be confiscated, and creates incentives for police and prosecutors to use forfeiture as a way to target those without the ability to fight a seizure. The law can also lead to unintended consequences, such as putting elderly parents or minor children living in a target’s house at risk for homelessness.

I am committed to helping reform the these laws, and am working with other concerned citizens to raise awareness and organize for change.

In the meantime, if law enforcement is trying to obtain your property through forfeiture, email/call me for a free 30-minute consult.

Tel. 413.992.2915  Email: peter@petervickery.com

 

PeterVickery_1 sitting
Peter Vickery, Esq.