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Massachusetts Remains a Civil Forfeiture Outlier

by Jayson Hawkins 

The five-plus decade battlefield of America’s war on drugs and crime is littered with dishonesty, abuse, and failure, which goes far to explain why 50 years of social war has achieved nothing beyond the growth of a massive police state and increased unrest in over-policed communities.

Many of the weapons wielded by the state in this war have been increasingly under fire of late, from militarized and unaccountable police to mass incarceration to perpetual disenfranchisement. One tactic that investigators at ProPublica and local Massachusetts station WBUR have recently shed light on is the widespread use of civil forfeiture, especially in Massachusetts’ Worcester County, one of the poorest and most crime-ridden counties in the state.

Civil forfeiture, the confiscation of cash or property by the government, has roots in English common law, but it got new life in 1970 when federal law enforcement agencies were given broad power to seize assets in the newly-declared war on drugs. Most state governments quickly followed suit. In Massachusetts, the law required police to establish by a “preponderance of evidence” that confiscated property was “more likely than not” involved in a drug crime to justify seizure. In the anti-crime hysteria of the late 1980s, that requirement was lowered to “probable cause,” the least demanding burden in the American legal system.

In subsequent years, as experience sobered many tough-on-crime enthusiasts, every state but Massachusetts heightened the standards for civil forfeiture, and just as the state is an outlier in lax forfeiture standards, so, too, is it an outlier in the myriad of abuses associated with the practice.

Police in Massachusetts can confiscate cash or property based on a suspicion of drug activity. Cops cite justifications like people appearing nervous, carrying rolls of 20-dollar bills, or simply traveling along what are termed “well-known routes used by drug traffickers.” The ProPublica investigation found that over half the seizures in Worcester County from 2017 through 2019 were for less than $500. Police in that county reported taking $10 from a man listed as homeless and another $10 from a 14-year old boy.

Though it is difficult to grasp how such small amounts could possibly impact the war on drugs, Worcester County DA Joseph Early has no qualms about defending the confiscations. “If I can get $5 or $10, $20, $50, $200, $50,000 or $100,000, it’s all going into my prevention efforts,” he said. “I love taking the drug dealer’s money; I love taking their lifeblood and putting it back into the community.”

Early’s office brought in nearly $4 million in forfeitures from 2017 through 2020, much of it in the form of the spare change of small confiscations. It is a point of contention, however, how much of this money was put into legitimate “prevention efforts.”

While campaigning for re-election in 2018, Early faced scrutiny for how his office used forfeited cash, including the purchases of cars for him and his assistant. As far back as 2013, state auditors found irregularities in $50,000 in forfeiture spending, citing a lack of documentation showing a clear law enforcement purpose.

Another Massachusetts problem exemplified by Worcester County is the near-impossibility of recovering improperly seized assets. The causes of this difficulty are many-faceted. The trouble begins with the fact that in Massachusetts forfeiture proceedings are filed in a separate court from criminal cases, so not only are the two processes not linked in scheduling, but civil proceedings do not require the court to provide counsel. Attorney’s fees for the often-poor victims of unjust confiscation often easily far outstrip the amount at stake.

The common practice of bundling also poses a problem in Worcester County. Early’s office bundled 1,270 confiscations into 16 cases from 2016-2020. Some of the confiscations were over 10 years old. Minimal notice was given to the subjects of confiscations—mostly fine-print “Notification” ads in newspapers.

Not surprisingly, 84% of civil forfeiture cases in 2019 were won by default, even though 24% had no accompanying drug conviction and an additional 9% of seizures had no publicly available court records at all. Of more than 1,000 seizures from 2017 through 2019, Early’s office returned money to only 16 people.

Despite Early’s insistence that these practices are essential to his office’s efforts to combat drug crime, change seems to be on the horizon. While Massachusetts has failed to pass legislative reform, pressure from a state commission has led Early to set minimum limits for confiscations and a three-year window for forfeiture proceedings.

Many social justice advocates hope that these trends are the first steps in putting the tired warhorse of civil forfeiture out to pasture.  

Sources: propublica.org, techdirt.com

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